July 29, 2008

Free from politics

There was an unbroken rule, embodied in law, regulation and department policy, that no political questions would be asked of those who wanted to serve in career -- as opposed to political -- positions in the department. We demanded of our Justice Department, in its core prosecutorial and adjudicative functions, that it be separate from politics. Until the Bush administration.

The Post says of Ms. Gorelick, "The writer, a deputy attorney general in the Clinton administration, is a partner at WilmerHale in Washington." What the Post does not say of Ms. Gorelick, is that she was the former Clinton administration deputy attorney general who was also a 9/11 commissioner. That put Ms. Gorelick in the highly unusual position of investigating the activities of her former boss, U.S. Attorney General Janet Reno. Since those activities occurred during Ms. Gorelick's own tenure at justice, by extension she was investigating herself. Is it any surprise that nothing came out of the 9/11 commission investigation? The Wall Street Journal had this to say about it.

We predicted Democrats would use the 9/11 Commission for partisan purposes, and that much of the press would oblige. But color us astonished that barely anyone appreciates the significance of the bombshell Attorney General John Ashcroft dropped on the hearings Tuesday. If Jamie Gorelick were a Republican, you can be sure our colleagues in the Fourth Estate would be leading the chorus of complaint that the Commission's objectivity has been fatally compromised by a member who was also one of the key personalities behind the failed antiterror policy that the Commission has under scrutiny. Where's the outrage?

At issue is the pre-Patriot Act "wall" that prevented communication between intelligence agents and criminal investigators--a wall, Mr. Ashcroft said, that meant "the old national intelligence system in place on September 11 was destined to fail." The Attorney General explained:

"In the days before September 11, the wall specifically impeded the investigation into Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi. After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.

"When the CIA finally told the FBI that al-Midhar and al-Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI headquarters refused to allow criminal investigators who knew the most about the most recent al Qaeda attack to join the hunt for the suspected terrorists.

"At that time, a frustrated FBI investigator wrote headquarters, quote, 'Whatever has happened to this--someday someone will die--and wall or not--the public will not understand why we were not more effective and throwing every resource we had at certain 'problems.' "

What's more, Mr. Ashcroft noted, the wall did not mysteriously arise: "Someone built this wall." That someone was largely the Democrats, who enshrined Vietnam-era paranoia about alleged FBI domestic spying abuses by enacting the 1978 Foreign Intelligence Surveillance Act (FISA).

Mr. Ashcroft pointed out that the wall was raised even higher in the mid-1990s, in the midst of what was then one of the most important antiterror investigations in American history--into the 1993 World Trade Center bombing. On Tuesday the Attorney General declassified and read from a March 4, 1995, memo in which Jamie Gorelick--then Deputy Attorney General and now 9/11 Commissioner--instructed then-FBI Director Louis Freeh and United States Attorney Mary Jo White that for the sake of "appearances" they would be required to adhere to an interpretation of the wall far stricter than the law required.

What great good fortune for the Clinton administration that the person who should have been first up in the witness chair, explaining why intelligence services were unable to "connect the dots" was instead unavailable for questioning.

And since she was one who got to ask questions we can understand how it is that Sandy Berger didn't face much in the way of questioning, either. Sandy Berger, you may recall, was a Clinton administration national security adviser. It seems he misplaced some classified documents he was reviewing at the National Archives as he prepared for his own testimony at the 9/11 commission hearings. Perhaps misplaced is the wrong word. I think "shredded" is the word, since that's actually what he did with them.

The deal's terms make clear that Berger lied last summer when he said that in 2003 he twice inadvertently walked off with copies of a classified document during visits to the National Archives, then later lost them.

He described the episode last summer as "an honest mistake." Yesterday, a Berger associate who declined to be identified by name but was speaking with Berger's permission said: "He recognizes what he did was wrong. ... It was not inadvertent."

Under terms, Berger has agreed to pay a $10,000 fine and accept a three-year suspension of his national-security clearance. A judge must accept these terms before they are final, but Berger's associates said he believes that closure is near on what has been an embarrassing episode during which he repeatedly misled people about what happened during two visits to the National Archives in September and October 2003.

Lanny Breuer, Berger's attorney, said in a statement: "Mr. Berger ... accepts complete responsibility for his actions, and regrets the mistakes he made during his review of documents at the National Archives."

The terms of Berger's agreement required him to acknowledge to the Justice Department the circumstances of the episode. Rather than misplacing or unintentionally throwing away three of the five copies he took from the archives, as the former national-security adviser earlier maintained, he shredded them.

The document, written by former National Security Council terrorism expert Richard Clarke, was prepared in early 2000 detailing the administration's actions to thwart terrorist attacks during the millennium celebration. It contained considerable discussion about the administration's awareness of the rising threat of attacks on U.S. soil.

Archives officials have said previously that Berger had copies only, and that no original documents were lost. It remains unclear whether Berger knew that, or why he destroyed only three of the five versions of a document.

Ah. A mystery. Why destroy only three of he five versions of a document? Well, how about hand written notes? There's a thought. But I digress.

Regarding Ms. Gorelick's editorial column, her complaint is that the Bush administration sought to hire conservative leaning attorneys in their justice department. Much the same as it preferred conservative justices, who interpret existing law rather than make it up as they go along, the Bush administration seems also to have preferred conservative prosecutors who might prosecute in an even handed manner.

Ms. Gorelick would undoubtedly prefer some fine upstanding liberal, someone in the mold of former New York State Attorney General, Eliot Spitzer. How fortunate we are that Ms. Gorelick, former official from that bastion of integrity the Clinton administration, is here to instruct us on the meaning of justice. How fortunate she has the Washington Post to lend her the weight of its authority.